¶2Profit was charged with the brutal attack of a woman in her
home.After breaking into her home,
Profit repeatedly sexually assaulted her, beat her and stole money from her. DNA evidence and fingerprint samples from the
scene matched database records for Profit.

¶3At the arraignment, Profit’s attorney advised the court that
he would have to withdraw because of a conflict.The attorney also advised the court that
Profit wanted to enter a plea.After
appropriate inquiry into Profit’s competency to represent himself and his
understanding of an attorney’s role, the court granted Profit’s request to
proceed without counsel.

¶4After a plea colloquy, Profit was convicted, upon his no
contest pleas, of three counts of second-degree sexual assault, battery, false
imprisonment, burglary and theft.We
affirmed the convictions on direct appeal, pursuant to a no-merit report.

¶5Profit subsequently filed a Wis.
Stat. § 974.06 postconviction motion.Profit argued: (1) postconviction
counsel was ineffective for failing to argue the circuit court did not inform
Profit of all the elements of the crime; (2) this court did not perform a
full examination of the record pursuant to the no‑merit procedure; (3)
standby counsel never informed Profit of all the elements of second-degree
sexual assault; and (4) his no contest pleas were not entered knowingly,
voluntarily and intelligently.

¶8Profit argues that he is entitled to withdraw his plea after
sentencing because he was not informed that, when a sexual assault charge is
based on sexual contact, the State must prove “the sexual arousal or
gratification of the defendant or the sexual humiliation or degradation of the
victim.”However, the State may prove
second-degree sexual assault by proving either sexual intercourse or sexual
contact.SeeWis. Stat. § 90.225(2).The three counts of sexual assault charged in
this case were described as oral, vaginal and anal intercourse.It is only the sexual-contact mode of
commission that requires proof of sexual gratification or the victim’s
humiliation.See State v. Jipson,
2003 WI App 222, ¶9, 267 Wis. 2d 467, 671 N.W.2d 18.

¶9Accordingly, the circuit court properly informed Profit, “the
State would have to prove … that you had sexual intercourse, that the
individual with whom you had sexual intercourse did not consent to that
intercourse, and finally that you had sexual intercourse with that … person by
use [or] threat of force or violence.”Profit
indicated at the plea hearing that he understood this to be the State’s
burden.

¶10There was no need for the circuit court to explain to Profit
the legal definition of “sexual contact.”Profit conceded the facts as pleaded in the complaint were true.A sufficient basis supported the
convictions.The record demonstrated
that Profit’s plea was entered voluntarily, knowingly and intelligently.

¶11Profit also argues this court failed to perform a full
examination of the record pursuant to the no-merit report.A defendant challenging a no-merit decision
has the burden of proving that the court did not fulfill its no-merit duties,
“perhaps by identifying an issue of such obvious merit that it was an error by
the court not to discuss it.”See State
v. Allen, 2010 WI 89, ¶83, 328 Wis. 2d 1, 786 N.W.2d 124.

¶12The only issue Profit identifies as purportedly missing from
this court’s independent review is the “sexual-contact element” argument
discussed above.There is no merit to
this issue, so Profit has failed to demonstrate that this court did not fulfill
its no-merit duties.

¶13Profit also argues “ineffective standby counsel” because he did
not explain to Profit the “sexual-contact element” of the crime, and thus
deprived Profit of a meritorious basis to withdraw his plea before sentencing.[2]Once again, Profit’s “sexual-contact element”
argument is meritless.Thus, there could
be no deficient performance for failing to advise Profit to withdraw his plea
on that ground.See State v. Tolliver,
187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct. App. 1994) (counsel does not perform
deficiently by failing to make a meritless argument).

By the
Court.—Order affirmed.

This opinion will not be published.See Wis. Stat. Rule 809.23(1)(b)5.

[1] All
references to the Wisconsin Statutes are to the 2011-12 version unless noted
otherwise.

[2] At
the sentencing hearing, Profit was represented by counsel.Profit indicated that he did not wish to
withdraw the pleas previously entered.